How do I get out of administrative processing?

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FAMILY-BASED IMMIGRANT VISA AND FIANCÉ(E) VISA CATEGORIES

If you are applying at a U.S. consulate for a family-based immigrant visa and you are national of Burma, Eritrea, Iran, Kyrgyzstan, Libya, Nigeria, North Korea, Somalia, Syria, or Yemen, your visa will be refused under the travel ban, either Presidential Proclamation 9645 or 9983, at the end of your consular interview. You should receive a paper "refusal notice" as you leave.

However, it is the State Department's policy to automatically consider every visa applicant refused under the travel ban for eligibility for a "waiver" of the travel ban. To be eligible for a waiver, the State Department must find that:

denying the visa applicant entry would cause undue hardship.

the visa applicant’s entry is in the national interest,

the visa applicant would not pose a threat to the national security or public safety of the United States.

Typically, consular officers find that family-based visa immigrants are able to satisfy the undue hardship and national interest prongs. However, the State Department has implemented the travel ban so that the consular officer does not have the discretion to make the national security and public safety determinations. Visa Office employees and/or government contractors in around Washington, DC are instead making the national security and public safety determinations. This is where the waiver system falls apart. You will find yourself regularly checking the CEAC website.

You are not alone and we are here to help. The solution we offer is a writ of mandamus, a lawsuit with the goal of compelling the government to do what it already has a duty to do. Actually, we give ours a little kick because we couple our writs of mandamus with what is called a complaint for declaratory relief, asking courts to declare how long is too long, and that the travel ban is unconstitutional because it is implemented in a way that violates due process.

After filing a writ of mandamus/complaint, a federal court can order the State Department to adjudicate the travel ban waiver. A writ of mandamus does not guarantee the grant of a waiver from the travel ban, but in most cases, that is the outcome.

There are two ways to file a writ of mandamus - as a solo plaintiff seeking just your family's visas, or as a participant in a group case - we call them joinder cases. There are advantages and disadvantages to both routes. However, for most family-based immigrant visa applicants , we recommend participation in a group case for three reasons:

participation in a group case allows all the participants in the group to benefit off of the hardship of other applicants, creating a compelling reason to have the judge's attention.

participation in a group case allows for all the participants to benefit from the value of publicity to a case, which is rare with solo plaintiff cases.

participation in a group case, because the costs are shared, is more affordable.

As of March 10, 2020, the State Department issued 61 visas to family-based and fiancé(e) visa applicants participating in our mandamus cases.

ALL OTHER VISA CATEGORIES

If you are applying at a U.S. consulate for other visa categories and you are national of Burma, Eritrea, Iran, Kyrgyzstan, Libya, Nigeria, North Korea, Somalia, Sudan, Syria, Tanzania, or Yemen, your visa may be refused under the travel ban, either Presidential Proclamation 9645 or 9983, at the end of your consular interview. If it is, you should receive a paper "refusal notice" as you leave.

However, it is the State Department's policy to automatically consider every visa applicant refused under the travel ban for eligibility for a "waiver" of the travel ban. To be eligible for a waiver, the State Department must find that:

denying the visa applicant entry would cause undue hardship.

the visa applicant’s entry is in the national interest,

the visa applicant would not pose a threat to the national security or public safety of the United States.

Unlike family-based immigrants who can easily satisfy the undue hardship and national interest prongs for a waiver, with other visa categories this can often be a challenge. But even after the consular officer determines those prongs are satisfied, the delays for the national security and public safety determination can be completely unreasonable.

We are here to help. One solution we recommend - for those who have had their interview and who are stuck in "Administrative Processing" or the "Refused" screen that means administrative processing- is a writ of mandamus, a lawsuit with the goal of compelling the government to do what it already has a duty to do. After filing a writ of mandamus, a federal court can order the State Department to adjudicate the travel ban waiver. A writ of mandamus does not guarantee the grant of a waiver from the travel ban.

Will petitioning for a writ of mandamus jeopardize our visa application?

This is a common misconception. In our view, when a case is in litigation it is the one time we can know for sure the State Department will act in good faith and fairly adjudicate an application, because its own Department of Justice attorney will be advising them to do so. Further, the court, us as Plaintiff attorneys, and possibly, the media, will be watching as well. In the extremely unlikely event the State Department denied a waiver or refused to issue a visa as a result of litigation, that conduct would be what is called "bad faith" and is unlawful. Under a case called Bivens, as victims of this bad faith, you could be entitled to money damages. Further, the government could not raise the "consular nonreviewability" defense because bad faith is an exception to that principal. Simply, it would be a scandal for the State Department to retaliate against visa applicant litigants, and thus is extremely unlikely to happen.

Are mandamus lawsuit participants required to go to court?

No. We, as your attorneys, will attend court on your behalf. However, if you would like to come, you are more than welcome to do so. In fact, it is helpful for judges to see a sample of the cases participants in the courtroom.

If we participate in a mandamus action, can you guarantee the outcome?

No. Attorneys cannot guarantee the outcome of judicial proceedings. We can tell you what has happened in similar litigation in the past. In Mosleh v Pompeo, we represented 7 Yemeni families who all received waivers of the travel ban within 45 days of the day we filed the case, and visas issued to all within 65 days.

For the cases we've filed since then,the results have not been that fast for all the participants, but we remain confident that participating a joinder mandamus action is still the best chance at getting the State Department to adjudicate a travel ban waiver and issue a visa.

What kind of evidence do you collect from participant families?

(1) Any correspondence between the U.S. embassy, and you, a previous attorney, or a congressional representative. (Ideally send as pdfs, but it’s ok to forward to us as well).

(2) Any consular interview notices of consular interviews, or notice of refusals, including 221(g) and 212(f) refusals.

(3) Any letters from doctors explaining medical or psychological conditions.

(4) Any other hardship documents you believe would be helpful. We do not need travel receipts – rather when we take your declaration, just remember to state the amount you’ve spent, if any, since the date of the visa beneficiary’s interview (PP 9645 refusal).

(5) If you have screenshots from Skype/Facetime or other video chat apps between the petitioner (and our family) and beneficiary (and/or family), please send us the best one or two images only. Note: we do not want pictures of you physically together in the same location as we argue how family separation is unbearable.

Note: We do not collectthe evidence you submitted for your Form I-130 or Form I-129F, showing that you have a bonafide relationship. This is not necessary as you are past this hurdle. If you submit this to us, wading through it drains our limited time to integrate your facts into the case and could delay the filing of the case.

If we participate in a mandamus case, do we have to participate in publicity for the case?

Our litigation entails the public disclosure of private facts. However, if you do not want to talk to journalists, and want your story confined to court filings, we can do that too. Note: We upload all court filings to this website, except exhibits like the declaration we prepare for you, and personal evidence you provide us from the six categories above.

While participating in publicity is optional, we have found families who do usually get quicker outcomes, with limited exceptions.

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What kind of families participate in mandamus cases?

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